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The FCIL-SIS Book Discussion Group will meet at the Annual Meeting on Monday between 12:15 and 2:00p.m. We are gathering at the AALL Annual Meeting Registration Desk at 12:15p.m.

The book under discussion this year is A World in Disarray, by Richard Haass (New York: Penguin, 2017). Haass has been President of the Council of Foreign Relations since 2003. After graduating from Oberlin and receiving his M.Phil and D.Phil from Oxford, Haass worked for the Department of State and the Department of Defense. Between 2001 and 2003 he served the George W. Bush Administration by assuming the dual role of Director of Policy Planning at the State Department, where he became a close adviser to Secretary of State Colin Powell, and United States Special Envoy for Northern Ireland, for which he received the Department of State’s Distinguished Service Award. The book under discussion is Haass’ twelfth book, and it very much follows the line of thinking set out in probably his best known work, The Reluctant Sheriff, in which he writes, “what will prove crucial is the ability of the United States to persuade others to adopt and abide by its preferences—and the will and ability of the United States to act as sheriff, to mobilize itself and others to insist on them when resistance emerges.” (p.44). In the present book he mellows some and invokes the principle of sovereign obligation, where a state works towards meeting the interests of other states. In the final chapter he addresses the issue of our country in disarray. (No, it is not about Donald Trump’s foreign policy.) Here he calls for more military spending. You can imagine how that analysis sits with this Connecticut Yankee and ordained minister (emeritus) of a historic peace church, e.g., Friends and Mennonites. The book does have value. I thought the discussion of R2P and United States debt were two of the high points.

I believe our group will be smaller this year, and if you are interested in foreign policy, world order, and international relations, please feel free to join us, even if you haven’t read the book. I will reserve a couple of extra places at the lunch table.

Criminality and Criminal Justice in Contemporary Poland is a collection of articles by professors, as well as one alumna, of the Institute for Law Studies at the Polish Academy of Sciences. The series of ten articles designated as chapters describe the philosophical views on crime and criminality of some of the authors, as well as other Polish authorities on the subject, and describe the historical and contemporary aspects of crime, the criminal justice system, and public perceptions of both in the country.

Poland is a country of significance to international and comparative legal scholars in being one of the largest countries in Central Europe, a region of nations characterized by long legacies of foreign rule, the more recent experience of a half-century of existence under Soviet-imposed Communism, and a still unfolding path of economic and political integration into pan-European institutions. As such, this work is of relevance not only to those interested in comparative criminal law, but also those interested in criminality across time and cultures, as well as the economic, social, political and cultural issues that arise in societies in transition from command to market economies and from authoritarian to liberal-democratic political systems.

Chapter 1, “Criminality Today and Tomorrow,” discusses historical and philosophical definitions of the concept of crime, as well as the ways in which crime is defined in the current Polish criminal code, with reference to defenses and mitigating circumstances (e.g., when certain acts are committed by juveniles or in self-defense), contained in the code.

Chapter 2, “The Status of Criminality in Poland since 1918”, narrates the history of Polish criminal legislation from independence through the communist era, to the present day, as well as describing rises and falls, and changed in criminal activity in the country with reference to available statistics, chiefly, the total number reported crimes and finalized convictions in a given period.

Chapter 3, “Social Change and Criminality: Mutual Relationships, Determinants, and Implications” treats the issue of social change and its effect on the level and nature of criminality. Kossowska describes the findings and conclusions of a number of criminologists concerning changes in criminal activity during several key periods of transition in 20th century Polish history, concluding with a discussion of the precipitous drop in ordinary criminal activity in many nations including in Poland, albeit delayed in comparison to elsewhere, and also with the advent of cybercrime and the unusual, un-marginalized nature of those who engage in it.

Chapter 4 examines the association between crime on one hand and socially excluded and economically marginalized groups on the other. Beginning with a discussion of the criminalization of the itinerant and unemployed in medieval Europe, the author examines how poverty and factors often accompanying poverty, such as feelings of alienation from society, alcoholism, family breakdown, living in marginalized areas often combine with opportunities to commit crime, leaving underprivileged people to be disproportionate perpetrators and victims of crime. Chapter 5 continues by examining the difficulties faced by and failures of the Polish social welfare and public educational system in being able to effectively reduce social exclusion, and, by extension, criminal activity.

Chapter 6, “Justice and its Many Faces,” describes the views of many contemporary Polish writers on society’s proper response to those guilty of committing crimes.

Chapter 7 “Controlling Criminality” focuses on the Polish criminal justice system’s historical approaches to combating crime, with statistical data on numbers of crimes, convictions, and frequency with which various sanctions were imposed. Chapter 8 “Supervised Liberty,” focuses on one of the most frequently imposed of these sanctions, the suspended sentence, and comparing the philosophical justifications and practical success of this sanction with that of probation in the United States, United Kingdom, and similar systems elsewhere in Europe.

Chapters 9 “The Social Perception of Criminality,” and Chapter 10 “Criminality and the Media” combine to tell the story of public perception of crime and the role of the media in forming that perception, beginning with the late Communist era, typified by press censorship, and a relatively low level of certain criminal activity, and continuing on through the transition to democracy, characterized by a rise in criminal activity as well as the development of sensationalist media and a great rise in popular fear of crime. The story of a tabloid press fanning public fear of crime, as well as the sentiment of a criminal justice system that is ‘soft on crime’ despite its many punitive aspects would likely ring familiar to the ears of many American readers.

Many of the chapters of the book are written in a somewhat dense scholarly style. Citations are in APA format. The reader should note that citations to many of the graphical figures provided in the work are not provided with the figure, but rather are indicated within the text, where the particular figure is first mentioned. Sometimes chapters focus on providing numerous summaries of the opinions and findings of various other authors rather than rigorously promoting and supporting the authors own thesis. The strength of these chapters, however, lie in providing a reader a good outline of Polish scholarship on crime and penology, and for this reason the book would fit well in an academic law library’s criminal law or comparative law collection.

On Tuesday, July 21, 2015 at 9:30 a.m., the group met at the at the Philadelphia Convention Center and embarked on a lively discussion, provoked by several of us remarking on the journalistic style of the book, in contrast to the monographs many of us buy, use, and recommend to students for research. Dan asked us what we thought of this approach. Responses were mixed; the clear and simpler style kept many of us more engaged with the recitals of colonial and post-colonial history that were crucial to understanding the nature of this international dispute. The narrative and maps presented effectively a narrative about tiny islands, coral and guano, that dot the “South China Sea.” (These quotations started to seem necessary after reading that this area of the sea goes by other names depending upon whether one’s perspective is Philippine, Vietnamese, etc.). After guano was harvested, rumors in more recent times have arisen to the effect that more valuable resources lie beneath some of the islands: oil and/or natural gas. So far, no discoveries have confirmed this.

Many of us are familiar with the classical international law views of the sea as well as the more recent regime, made formal after the Second World War, articulated in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). One of our participants observed that the rumored oil and gas would likely fall within national boundaries and not in the disputed areas, given that the Exclusive Economic Zone (EEZ), an area not more than 200 nautical miles from a country’s coastal baseline (UNCLOS, art. 57). The 12-mile limit of a territorial sea is therefore much smaller and part of the sovereign territory. Our author described in detail the efforts of competing jurisdictions to build up tiny islands, install airstrips and the like, asserting evidence of control. Author Bill Hayton contrasted the “freedom of the seas” championed by Grotius in the 17th century with the more restrictive view of his contemporary John Selden, who believed some measure of restriction and control may be exercised by a coastal state. The compromise reflected in UNCLOS was put into an interesting light by Hayton, who describes a “mandala” view of power among southeast Asians at the beginning of the 19th century that contrasted with Europeans. A ruler’s power in their view diminished as one moved away from the center of a kingdom near the sovereign. The Westphalian view has been that rulers have the same degree of power throughout a territory and its limit is the boundary (Hayton, 46). Hayton seems to suggest that the western view is now one source of the tension and counterclaims in the South China Sea.

Another important question one of us posed to the group was to ask, what are the real current disputes and the role played by the hypothetical value of the resources there? The assertion of sovereignty by China PRC is the principal one of concern to the United States, even though claims and concerns have been asserted, over time, by Vietnam, the Philippines, and Taiwan. It was noted in our group that it was very unfortunate that this territorial dispute had become so fraught within China-U.S. relations. Just as in the days of Selden and Grotius, sovereignty disputes sometimes serve to promote social cohesion, and the audience for the dispute (from a government’s perspective) may be an internal one as well. In military terms, any future success in asserting control of the South China Sea by China could prevent mobilization of the U.S. military in the area. Closing the sea in that way to U.S. maneuvers could be a game-changer, since only trade and marine exploration are protected in the EEZ (Article 56 (1) (b), UNCLOS), although this is precisely where ambiguity has arisen. Participant John Wilson contributed his knowledge of some theories of international relations as well, and this enhanced our perspective on the issues as did Gabriela Femenia’s work with a faculty member who studies this dispute.

This group book discussion would make a great annual meeting activity going forward, and thanks from all to Dan Wade for once again inaugurating what may become a deeply valued tradition. Thanks to Gabriela, our Philly local, who thought globally but acted locally to bring us the super-special, amazing doughnuts from Federal Donuts with flavors like red velvet cake, curry (saw this one on the web site) and more. This is one international debate that ended with lots of sugar and smiles! The duty may fall to Lyo to find us doughnuts like this in Chicago. No pressure…. see you next year!

Emerging Challenges in Privacy Law, Comparative Perspectives is a collection of essays adapted from programs presented at the “Emerging Challenges to Privacy Law: Australasian and EU Perspectives” conference held in February 2012 at Monash University in Melbourne, Australia. To accommodate for the fast-moving development of privacy issues, a few essays have also been specifically commissioned for inclusion in this collection to provide broader coverage of the big issues developing since early 2012. While there is a decidedly heavier focus on European fundamentals, Australian history and/or advances in privacy protections are also discussed in several of the essays.

The collection is organized in six parts and provides a little bit of something for anyone interested in privacy and data protection around the globe. Some topics covered are quite broad (Privacy and the Internet), while others are very narrow in focus (protecting the anonymity of young people in Anti-Social Behaviour Orders). Additionally, the collection offers a nice balance of discussions on theory and the abstract (“[Convention 108] is the only global data protection treaty we are ever likely to see”) as well as detailed discussions about the nuances contained in some privacy arenas (the five categories of “intrusion on seclusion” violations). Finally, several of the essays provide much-needed historical context for the development of privacy frameworks in many different areas of privacy law because it is truly impossible to understand where we are and where we should go with privacy law without first exploring where we have been and how we got to where we are today.

Part I of the collection provides an overview of both the Australian and European Union data protection frameworks from three different perspectives – that of Australian Privacy Commissioner (Timothy Pilgram), of the European Data Protection Supervisor (Peter Hustinx), and finally of an Australian privacy advocate (Nigel Waters, Principal, Pacific Privacy Consulting). All three “agree on the challenges facing data privacy law reform” and the importance of enforcement of data protection laws, however, there is significant disagreement on successful expansion of those laws and enforcements over territorial / jurisdictional boundaries and consistently defining and protecting these rights on a global scale.

Part II provides the much needed fundamentals of the primary documents that have shaped privacy protections in the European Union. Specifically, Chapter 5 examines the architecture of privacy protection in EU through the exploration of current privacy rights and the documents that granted and guarantee those rights (pre-2012 reform proposals). Documents discussed include the well-known European Convention of Human Rights (ECHR) as well as the formal adoption of the more recent Charter of Fundamental Rights (2009). Discussions also touch on “data protection” in conjunction with Convention 108 (1981), Directive 95/46/EC (1995), and continue up to the proposed reforms offered in January 2012.

Chapter 6 focuses on one particular document (Convention 108) and provides food-for-thought about how far privacy protections can really evolve globally. Renowned author and scholar, Professor Graham Greenleaf proffers, “[Convention 108] is the only global data protection treaty we are ever likely to see” because no other organization (save the UN) has the capability nor the desire to draft such a global document and current efforts to update and globalize Convention 108 could eliminate the need for an additional global document.

Part III of this collection gets into the real nitty-gritty of some very specific privacy violations. First, Chapter 7 addresses privacy beyond the unwanted dissemination of private information to that of “physical privacy.” Professor Moreham explores the patchwork of legislative, criminal, and common law measures in England to prevent this “intrusion on seclusion” (including several “slippery slope” examples of each of the five categories of intrusion – unwanted listening and audio recordings; unwanted watching, following, photographing and/or filming; unwanted access to personal documents or files (hardcopy or electronic); unwanted access to home and personal belongings; and harassment). In Chapter 8, Professor Michael Tilbury explores several alternative modes of protection from intrusion based in tort law and weighs the pros and cons of creating new causes of action in tort law and/or implementation of a “privacy rights-based model” to specifically enumerate privacy “wrongs.”

Part IV continues this in-depth analysis by examining surveillance frameworks in the United Kingdom, Australia, and the United States (Chapter 10) and the creation of Anti-Social Behaviour Orders (UK) and Prohibited Behaviour Orders (Australia) (Chapter 11) to prohibit “publication of anything that could identify that a young person has been involved in criminal proceedings” (page 229) in order to uphold the longstanding tradition of protecting the anonymity of young people.

Part V deals extensively with privacy issues and the Internet. Chapter 12 dives deep into development of the Internet, “privacy-invasive and privacy-enhancing features” of the Internet, and the effects (if any) the proposed Data Protection Regulation may have on the future of the Internet. Chapter 13 deals explicitly with the “right to be forgotten” in the EU data protection framework. Chapter 14 compares and contrasts privacy models in the European Union, Australia, the United States, Malaysia, Singapore, and finally, Chapter 15 explores cloud computing in the European Union generally and in Germany, specifically.

Part VI circles back to the media and how the courts in the United Kingdom and Australia should balance the rights of the media and free speech with the rights of the public and witnesses to privacy. It is unfortunate that these two chapters were moved to the end of the collection as they provide the perfect complement to Parts III and IV. Chapter 16 explores the use of anonymity orders to protect (from media disclosure) those involved in judicial proceedings, while Chapter 17 deals explicitly with interlocutory orders in defamation actions.

This collection of essays offers a robust dialog of past, present and future successes and challenges of privacy protections around the globe. It is an excellent collection for gaining a well-rounded understanding of the trailblazing European Union privacy frameworks and offers a mix of hope and cautionary tales to help us move forward in our united and global quest to find balance in privacy rights frameworks.

Brendan Tobin, a research fellow at Griffith University Law School with significant experience in the areas of environmental law, customary law, and global human rights law, makes a highly valuable contribution to the area of customary law and the rights of Indigenous Peoples through this well-written and thoroughly researched monograph. The book not only provides insights to theoretical research but also offers practical guidance to both legal and non-legal professionals working in the area of human rights, environmental justice, and indigenous peoples’ rights.

Tobin’s principal purpose, through this book, is to “demonstrate the importance, legitimacy and durability of Indigenous Peoples’ legal regimes, their rights to regulate their internal affairs in accordance with their own laws, customs, and traditions, and the central role that customary law has to play in securing the realization of their human rights.” Tobin starts with the premise that Indigenous Peoples’ rights of self-determination and autonomy are important and that customary legal regimes exist to protect those rights. He also draws a large amount of empirical evidence showing the dire consequences of not recognizing “customary law and indigenous jurisdiction.”

Despite being recognized by many binding international legal instruments and some domestic legal tools, Indigenous Peoples’ rights are not effectively protected. Tobin argues that neither the States nor legal professionals (such as Judges) fully appreciate the importance of customary law, a core component of most (if not all) Indigenous legal systems. As a result, many of customary legal principles are not given equal consideration as positive law during the dispute settlement and/or litigation process.

The problem that Tobin tries to resolve is a long-standing issue. There are many discussions on the (in)effectiveness of Indigenous Peoples’ rights protection.[1] There are many barriers that prevent effective protection of rights politically, economically, culturally, psychologically and judicially. Effective protection not only depends on recognizing the rights protected by legal instruments such as ratified international agreements, constitutions, statutes and case law, but also relies on implementation and enforcement of these legal instruments. Two major barriers to effective enforcement of customary law are due to the nature of custom and the nature of indigenous rights. The author is able to focus on both areas and make a thorough examination on both issues.

To sum up, there are three major contributions of this book. First, Tobin provides thorough analyses of the issues of ineffective protection of Indigenous Peoples’ rights and of ineffective implementation of customary law in indigenous legal regimes, drawing on a large amount of empirical data and major well-established theories in the area. Second, Tobin, in the second half of the book, closely examines the current (in)effective implementation of customary law in many practical areas, such as rights to land, right to culture, natural resources and traditional knowledge. Finally, Tobin also provides extensive footnotes and a comprehensive bibliography that would benefit other researchers in this area. Therefore, I would highly recommend this book to academic researchers and practitioners interested or working in the relevant fields. I also recommend this book to libraries of academic institutions, organizations and government agencies working closely with indigenous peoples.

[1] For example, see Jeremie Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (Ardsley, NY: Transnational Publishers, 2006).

Statelessness is an enigma, William Conklin writes, due to an assumption and a claim. The international community assumes that all persons are members of that community through the state of which they are a national. The international community claims that it provides protection for all members. The enigma arises because millions of persons are stateless, are not nationals of any state and thus are excluded from the international community, leaving them unprotected.

For those interested in the history of statelessness and in a thorough explanation of how and why the international community has created (or simply allowed to exist) such a large, unprotected population, Conklin’s book will be well received. Conklin’s passion for the subject is clear and his points are well-supported. However, for those hoping Conklin will present a definitive (or even a pie-in-the-sky) answer to the question of how to solve this enigma, the book may leave you frustrated.

Statelessness begins by explaining that the international community has two discourses. In the first discourse, the international community exists as the aggregate will of the states, the traditional definition of the international community. Under this view, the state is the primary actor and member of the international community; most importantly, the states always maintain independent power over domestic affairs, what Conklin call the “boundary of the reserved domain”—the boundary of power that the international community cannot touch. In the second discourse, Conklin’s implicitly preferred view, there is the international community as a whole. In the international community as a whole, the individual person is the actor and can access that community without state intervention. According to Conklin, statelessness is inevitable when the world is viewed as the aggregate will of the states because the ultimate decision as to whether to recognize the nationality of a person will always reside with the executive branch of a state. Under the international community as a whole, however, the person’s social and cultural bonds determine nationality.

Statelessness focuses on the status of those persons who, for whatever reason, no longer have a state in which they may legally live. Conklin focuses the first part of the book on the concept of statelessness, explaining how statelessness developed under the aggregate will of the states before discussing the consequences of statelessness and the reasons why statelessness has not been protected as a human right. Conklin provides numerous, often moving examples of those who are stateless: refugees from ISIS living in camps in Turkey, those who live in Palestine, nationals of the former USSR. The sources he uses are wide and varied, including international treaties, General Assembly documents, and fundamental sources of international law (such as jus cogens) to document and explain this enigma. He also pulls in sovereign and international court decisions from a variety of sources. But the strength of his analysis is significantly diminished by the repetitiveness of the first half of the book.

One almost forgets the repetitiveness of the first half of the book, however, when you reach the end of the book. In the last chapters, Conklin’s clear passion for those who have been rendered stateless stands out, and the book becomes much less repetitive. Conklin focuses on defining the social and cultural bonds that should exist between a person and her “state,” before shifting to his main question, whether the traditional sources of international law can be used to obligate states to protect a stateless person, regardless of the will of the state. Drawing a parallel to international criminal law, particularly to the ad hoc tribunals that were set up after Rwanda and Yugoslavia, Conklin argues that, like international criminal law, protecting stateless persons is implicit in international treaties. When an executive arbitrarily expels or refuses to grant a person nationality and when statelessness is recognized as a basic human right that is self-executing, the boundary of the reserved domain can be pierced. Being able to penetrate a state executive’s decisions means that the shift from an aggregate will of the states to the international community as a whole has started. That, it seems, is one of Conklin’s points: that statelessness arose because of the aggregate will of the states discourse, and that it is a good thing that the shift to the international community as a whole has begun.

Mitchel P. Roth’s new sweeping history of crime and punishment is a fascinating look at the way many societies, Eastern and Western, have developed methods over time to deal with behavior that is considered criminal. Roth very early on in his introduction explains that there is no “definitive answer to the question, ‘What is crime?’” and then goes on to say that for the purposes of his book, “crime will be regarded as a legal concept, that is, what is or is not against the law”.

An Eye for An Eye traces the history of crime and punishment from Mesopotamia and the Code of Hammurabi to the modern era. What is worth noting about the book is Roth’s thoroughness in trying to survey as many parts of the world as he can to show that the laws, practices, and motives of one society influence those of others. Roth examines the types of crimes committed in places like China, India and many of the European nations and explains how one nation’s imprisonment and capital punishment practices influence the others.

For example, in a chapter titled, “The Transformation of Punishment”, Roth talks about the British penal reformer, John Howard visiting Russia, to learn about its system, and to understand how Russia abolished capital punishment for all crimes except first-degree murder. Before that, Roth talks about the large penitentiary built near Philadelphia that brought Charles Dickens to the United States to visit the prison and then to denounce it for the use of solitary confinement. Additionally, the influence of nations on their colonies and the way in which criminal laws developed due to political and social influences by many nations is what makes the book extremely interesting to read.

This is a book that can both be read cover to cover, but can also be used as a source text for students of history and criminal studies who may be interested in a particular society or a particular method of punishment for a crime. The book is extremely well documented and the footnotes contain a wealth of information and good source material, should you need to follow up on a particular topic. Something else worth noting here is that Roth is acutely aware of the way many nations throughout history approached punishment. Oftentimes, the class and wealth of the victim as well as the perpetrator had a large effect on the outcome. There is much discussion of Sharia law, as well as the origins of civil and common law, as it affects the types of crimes and punishments meted out in many nations. Roth generally maintains an objective stance in his descriptions of punishments for minor and serious crimes. He does take certain societies to task, for their punishments, including the United States, for its very high incarceration rate. The book covers so many types of crimes, including rape, murder, and from the modern era, financial crimes.

When I say this is a fascinating book, I should also say that it is a difficult book to read without flinching, mainly because the author examines many dark periods throughout history to seek out the types of crimes and the varied punishments that man has inflicted on man (and woman). An Eye for an Eye is extremely well written and, for someone who enjoys reading various types of history, it is noteworthy in the breadth and the depth of the source material, including novels, newspaper accounts, as well as religious texts. Roth also explains early on that information on every society is not necessarily readily available, and therefore he does the best he can with available source material.

I would highly recommend this book, to all types of libraries, but then caution that it is truly not for the faint of heart, as it delves into very rough subject matter in its descriptions of serious punishments throughout the world and throughout history. It is the descriptions of the various punishments where I as a reader found myself both riveted and shaken by the cruelties of many societies.

Mitchel P. Roth has previously published several other books on prisons and crime and punishment and currently teaches Criminal Justice and Criminology at Sam Houston State University in Huntsville, Texas.